"Political foes can be friendly witnesses"

See this Spivak & Bice column, from Milwaukee, which begins: "Politics may make strange bedfellows, but an indictment truly brings together some unlikely allies. In a recent court filing, former Senate Majority Leader Chuck Chvala, now facing 19 felony counts in a political corruption case expected to go to trial late next month, has lined up a leading Republican lawyer, James Bopp, as one of his expert witnesses."

"Speech Regulation Alert"

The NY Sun offers this editorial.

"Governor to put his money down"

The Sacramento Bee offers this report, which begins: "Gov. Arnold Schwarzenegger, who's received a rash of criticism for trying to raise the $50 million he says he needs for his special election campaign, will soon contribute several million dollars of his own money to the cause."

More Diebold Conspiracy Theories Making the Rounds on the Internet

See this post on the Brad Blog.

"Among Voters in New Jersey, G.O.P. Sees Dead People"

The New York Times offers this report, which begins: " The joke has long been that dead people vote in Hudson County, New Jersey's legendary enclave of machine politics. But now the joke may be on New Jersey, according to a new analysis of voter records by the state's Republican Party.

Comparing information from county voter registration lists, Social Security death records and other public information, Republican officials announced on Thursday that 4,755 people who were listed as deceased appear to have voted in the 2004 general election. Another 4,397 people who were registered to vote in more than one county appeared to have voted twice, while 6,572 who were registered in New Jersey and in one of five other states selected for analysis voted in each state."

Thanks to Brian Nelson for the pointer.

Election Reform Conference

On October 7-8, the Center for Policy Alternatives, Demos and Common Cause will host an Election Reform Conference in Columbus, Ohio (the true epicenter for election reform, apparently). According to this web page,

This conference is designed to provide policy content, leadership development and networking opportunities for state legislators to advance an election reform agenda in their states. This conference, targeted to state legislators in the Midwest, has three strategic objectives:

Raise the awareness of state policymakers of the electoral problems that need repair within their states while providing proposals and best practices that provide solutions to these challenges.
Develop leadership capacity among policymakers and apply that capacity to effect change within their states.
Connect these legislators to electoral policy experts, reform advocates and citizen organizers and facilitate the creation of action plans to move a reform agenda forward in their states.
This combination of strategic objectives - leadership, education and networks - has been successfully used to reform public policy and enrich democracy in America.

Solum Responds to My Nuclear Showdown Piece

Here is a characteristically thoughtful post by Larry Solum. Anyone interested in this topic should read his draft with David Law, "Pivotal Politics, Appointments Gridlock, and the Nuclear Option."

Gerken on Section 5

Heather Gerken has posted A Third Way for the Voting Rights Act: Section 5 and the Opt-In Approach on SSRN. Here is the abstract:

One of the most powerful and intrusive civil-rights provisions ever passed - Section 5 of the Voting Rights Act - is scheduled to sunset in 2007, with congressional hearings on its fate beginning soon. Section 5 requires select localities - mostly states in the Deep South - to ask the federal government's permission before making any change, no matter how small, in the way they run elections. Despite its successes, Section 5 remains extremely controversial. Even experts on the Act are deeply divided as to what Congress should do.

Our choice is not, as everyone seems to think, between maintaining the Act's decades-old regulatory structure or allowing Section 5 to expire. There is a more dynamic approach, a middle ground that avoids the problems identified by the Act's critics while maintaining a robust safety net for minority voters. This essay sets out to describe what such a third-way approach would look like. It proposes an "opt in" approach that would privilege local control and community involvement in voting-rights enforcement. Such an approach would provide the right types of incentives for those involved in policing racial politics and deploy civil-rights enforcement resources more effectively than the current system. More intriguingly, an opt-in approach would create a new set of institutional incentives for political elites to pay attention to the needs and concerns of those most affected by their decisions. An opt-in approach thus offers a concrete strategy for tying the fate of political elites to average citizens and integrating debates about electoral structures into everyday politics. By reducing top-down regulation of election law, it may generate bottoms-up support for voting-rights enforcement.

Galston on 527s

Miriam Galston has a new draft paper on SSRN, 527 Groups and Campaign Finance: The Language, Logic, and Landscape of Campaign Finance Regulation. Here is the abstract:

In 2004 the country witnessed the first presidential election since the passage of the Bipartisan Campaign Reform Act of 2002 (BCRA). A major purpose of BCRA was to end two of the worst abuses of the federal campaign finance law-sham issue ads and soft money raised by political party committees. The BCRA amendments, like existing federal campaign finance law, were designed first and foremost to prevent corruption or the appearance of corruption resulting from large contributors' requesting favors from or gaining influence with the public officials whose campaigns their contributions benefited, regardless of whether the contributor or the lawmaker initiated the mutually beneficial process. As many foresaw at the time of BCRA's passage, individuals and groups with considerable assets would seek and probably find new campaign finance vehicles for achieving most of the benefits of the system prior to BCRA. Nonetheless, the swiftness with which 527 groups have threatened to replace political parties as the soft-money middlemen in federal campaigns surprised and angered many - from members of Congress to ordinary citizens. Since the 2004 election saw one of the most polarized campaigns on record and since 527 groups, both Democratic and Republican, were especially active in funding attack ads and other highly visible forms of campaign activity, they emerged as the arch villains of the process. Bills have been introduced in Congress to compel almost all 527 groups engaged in federal campaigns to register as political committees subject to federal campaign finance law (FECA). In addition, lawsuits have been filed to force the Federal Election Commission (FEC) to impose sanctions on 527 groups that failed to register as political committees in the last election. Lawsuits were also filed challenging some of the FEC's regulations on the grounds that they emasculated the provisions of BCRA, thereby contributing to the failure of reform efforts the agency is charge with implementing. As a result, some of the regulations were invalidated, some rewritten, and some are being appealed. In short, campaign finance reform is still in flux. The purpose of this Article is to analyze the legal issues that must be resolved before the validity of efforts to rein in 527 groups can be established. Most of these issues are constitutional because, by its nature, campaign finance regulation intrudes upon political speech, part of the core of First Amendment speech entitled to the most vigorous protection by the courts. My contribution to an area of the law where so many others have preceded me is to integrate the constitutional election law analysis with a technical analysis of what 527 groups really are and how they actually operate under the Internal Revenue Code. I also develop a new paradigm for understanding the conceptual foundations of specific constitutional doctrines that can and, in my view, do reveal a relatively coherent election law jurisprudence across the Supreme Court's campaign finance decisions, even taking into account the recent decision in McConnell v. FEC, which most commentators agree broke new ground. I divide the constitutional issues at stake into different categories and conclude that in some areas the precedents are difficult to square with the 527 reform proposals, whereas in other areas mainstream Court precedents tend to support the validity of the reform proposals. In conclusion, I raise some policy questions that, if faced squarely, should give lawmakers pause before painting all 527 organizations with the same legislative brush.

-- 
Rick Hasen
William H. Hannon Distinguished Professor of Law
Loyola Law School
919 Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org